Punishment and authorization

Notes for April 15

Main points

I began by saying two things about Gauthier’s treatment of punishment: it’s really smart and there are two problems with it. I ran out my story about authorization and the mere ownership of actions one last time (promise!) to solve the problems. And then we turned to the trickiest problems: saying what the social contract gives to the sovereign and trying to discern the importance of the distinction between punishment and hostility.

All in all, it was a very busy day!

What’s wrong with Gauthier?

Gauthier proposed an alternative account of the right of punishment: each subject authorizes someone else’s punishment. Clever! But …

Hobbes did actually say that it’s important for the subjects to authorize their own punishments.

Odd as it sounds, he never said why the sovereign needs to act on anyone else’s rights.

The only thing standing in the way of the subjects authorizing their own punishments is the apparent contradiction between doing so and the inalienability of the right of self-preservation. We solved that problem with the ownership use of authorization. And that gives Hobbes his arguments about justice and the distinction between punishment and hostility back.

What does the social contract create?

A commonwealth and a sovereign! Yes, but what does the social contract give to the sovereign? What new powers or rights are created by the social contract that did not exist in the state of nature?

Today I identified one. The social contract creates the person of the commonwealth with the sovereign as its representative. This gives the sovereign the standing to punish. No one had that prior to the social contract for Hobbes. For Locke, by contrast, everyone had the standing to punish in the state of nature.

Punishment vs. hostility

Why does having the standing to punish matter? It’s not because it confers the permission to use violence: the right of nature does that. What Hobbes said is that those who use violence without being authorized do not punish but instead employ “hostility.” But who cares what you call it? It’s all just violence, right?

Actually, it’s not. Punishment, according to Hobbes, is limited by the law while hostility is not. In defining punishment and hostility as he did, I think Hobbes was trying to say that the various elements of punishment hang together as a system.

It is obviously in the subject’s interest to live under a punishment system. That makes violence predictable and controllable: just don’t violate the laws and the sovereign won’t hurt you.

Sovereigns have good reason to stick to a punishment system too. The sovereign has to walk a fine line. On the one hand, the sovereign has to be scary enough to deter crimes. That’s how the sovereign gives the subjects the confidence to live without anticipatory violence against one another. On the other hand, the sovereign can’t reproduce the problem of the state of nature. No one in his right mind would agree to create a big scary sovereign if that sovereign is just going to continue the war. Sovereigns need to offer some assurance that they won’t use their power against their subjects in the ways that people in the state of nature use their power.

To do that, they need to stick to the punishment system. They need to use violence only for violations of the law and only to the extent laid out in the law. No pre-emptive attacks and no violence against the innocent.

So when Hobbes says that only an authorized sovereign can punish, I think he means that only an authorized sovereign will be seen as ruling by laws. And ruling by laws is what is involved in the punishment system.

Of course, Hobbes made provision for harming the innocent. He took pains to show that this would not be unjust. My point is that this can’t happen too often. And, I added, our own society has disturbingly similar attitudes towards punishing the innocent.

This page was written by Michael Green for Hobbes Seminar, Philosophy 185s, Spring 2013. ¶ It was posted April 15, 2013.